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University of Illinois School of Law
Pahre, Jennifer N.


FRE 102 Purpose and Construction
· These rules shall be construed to secure fairness in administration, elimination of unjustifiable expense and delay, and promotion of growth and development of the law of evidence to the end that the truth may be ascertained and proceedings justly determined.
Tanner v. United States, 483 U.S. 107 (1987) (Jurors drank and used drugs during trial)
· Juror testimony may not be used to impeach a verdict unless the testimony relates to an outside influence that affected the jury, because of the need to protect finality of the process and public respect for verdicts.
· The rules are designed to cast off meaningless, misleading and unreliable evidence.

1. General Principles of Relevance

A. Probativeness and Materiality
FRE 401 Definition of “Relevant Evidence”
· “Relevant evidence” means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.
FRE 402 Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible
· All relevant evidence is admissible, except as otherwise provided by the Constitution, by Act of Congress, by these rules, or by other rules prescribed by the Supreme Court pursuant to statutory authority. Evidence which is not relevant is not admissible.
o All relevant evidence is permissible, except as otherwise provided. Evidence that is not relevant is not permissible.
United States v. James, 169 F.3d 1210 (9th Cir. 1999)
· Evidence that directly corroborates a witness’s credibility is admissible, even if the evidence relates to facts not known to the witness.
· It is more likely that a person talked about events that actually occurred rather than events that didn’t. Thus, it’s more likely that James was genuinely fearful and telling the truth about the stories she claimed her boyfriend told her if those stories were true.
B. Conditional Relevance
FRE 104(b) Relevancy Conditioned on Fact
· Contested evidence is admissible only “upon, or subject to, the introduction of evidence sufficient to support a finding” of the conditional fact.
Problem 1.7—Threat to Disclose
· Kristine Fitzhugh’s apparent intention to tell her son that her husband was not his real father might have given her husband a motive to kill her, but only if he was aware of her intention. Thus, the evidence that Kristine had been planning to tell her son that her husband wasn’t his real father was conditionally relevant. The judge should allow the evidence only upon other evidence sufficient to infer that Kenneth knew of his wife’s plan.
Cox v. State, 696 N.E.2d 853 (Ind. 1998)
· If evidence is conditionally relevant, there must be a finding by the judge that the jury could find that the preliminary fact exists based on a preponderance of the evidence.
· Here, the relevance of the evidence depended upon a finding of an additional fact—that Cox knew what happened at Hammer’s bond reduction hearing. If he did know what happened, the evidence was probative of the State’s theory that Cox killed Leonard because of Hammer’s situation. If he didn’t know, the evidence would be inflammatory and highly prejudicial.
C. Probativeness versus the Risk of Unfair Prejudice
FRE 403 Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time
· Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.
1. Photos and Other Inflammatory Evidence
State v. Bocharski, 22 P.3d 43 (Ariz. 2001)
· Relevant evidence should not be admitted if it has little ability to establish a contested issue and the only effect would be to inflame the jury.
· Here, the only purpose for introducing the photos was to inflame the jury, and the court abused its discretion by admitting them. However, the court said there was no showing that the photos affected the jury’s verdict, which showed careful deliberation and attention to detail.
· What do you do as a defense attorney if the judge rules that some of the pictures are admissible?
o Brace the jury for nasty pictures but stress that the evidence doesn’t point toward your client
o Locate jurors that are susceptible to visual evidence like that in voir dire
o Put limits on the size of the pictures and try to get them in black and white
o Seek an instruction from the judge for the jury that says even though the woman is dead, the accused didn’t necessarily do it
Tyco Videotape Edited for Content
· Judge ordered that the most outrageous and distasteful scenes in a video of a party thrown by a Tyco executive to be removed from the video in the trial of the executive, who was accused of helping loot the company of $600 million. The rest of the tape was allowed to come in because it showed bad stewardship of Tyco’s money.
Commonwealth v. Serge, 586 Pa. 671 (2006)
· In trial for first-degree murder, prosecution used animation to illustrate expert opinion that husband had moved his wife’s body to stage a self-defense setting.
· A computer-generated animation is admissible as demonstrative evidence if: (1) it is a fair and accurate representation of the evidence it purports to portray, (2) it is relevant, and (3) it has probative value that is not outweighed by the danger of unfair prejudice. One way to safeguard against potential prejudice is to give a thorough and extensive cautionary instruction before playing the animation.
United States v. James, 169 F.3d 1210 (9th Cir. 1999) (Dissent)
· Evidence that is unfairly prejudicial to either party, meaning having a tendency to persuade a court or jury to make a decision on an improper basis, should be excluded.
· Here, James was entitled to prove self-defense, but she was not entitled to claim that Ogden’s death was justified because he was a bad person. The prejudice could outweigh the probative value.
Excerpts from the Ruling on the Fuhrman Tapes
· Judge in Simpson murder trial allowed jury to hear two examples of racial slurs by detective after detective testified that he didn’t use them. The two examples were relevant and admissible as impeachment, but the probative value of the other 39 examples were outweighed by danger of undue prejudice.
2. Evidence of Flight
United States v. Myers, 550 F.2d 1036 (5th Cir. 1977) (Defendant on motorcycle dodged car)
· Evidence of flight is admissible to show consciousness of guilt only if the evidence is sufficient to support inferences:
o (1) from defendant’s behavior to defendant’s flight,
o (2) from flight to consciousness of guilt,
o (3) from consciousness of guilt to consciousness of guilt of the crime charged, and
o (4) from consciousness of guilt of the crime charged

dn’t allow the anticoagulant to be stopped until patient was in the operating room. Court said evidence of the change in protocol couldn’t come in to show that the earlier protocol was unsafe. It also couldn’t come in as impeachment because when doctor had said it wasn’t “feasible” to restart the anticoagulant, he had simply meant it wasn’t safe in the given situation.
Problem 2.3, 2.4—Wood Chipper
· The defense attorney built his case around the exclusion of the evidence concerning the remedial measure of lengthening the chute of the wood chipper. However, the evidence was allowed in to impeach one of his witnesses who made an overly-broad, sweeping statement about the safety of the earlier design.
B. Compromise Offers and Payment of Medical Expenses
FRE 408 Compromise and Offers to Compromise
· (a) Prohibited uses. Evidence of the following is not admissible on behalf of any party, when offered to prove liability for, invalidity of, or amount of a claim that was disputed as to validity or amount, or to impeach through a prior inconsistent statement or contradiction:
o (1) furnishing or offering to promise to furnish—or accepting or offering or promising to accept—a valuable consideration in compromising or attempting to compromise the claim; and
o (2) conduct or statements made in compromise negotiations regarding the claim, except when offered in a criminal case and the negotiations related to a claim by a public office or agency in the exercise of regulatory, investigative, or enforcement authority.
· (b) Permitted uses. This rule does not require exclusion if the evidence is offered for purposes not prohibited by subdivision (a). Examples of permissible purposes include proving a witness’s bias or prejudice; negating a contention of undue delay; and proving an effort to obstruct a criminal investigation or prosecution.
o Offering to compromise is not evidence of liability, in order to encourage settlements.
o Will not keep out offer to compromise prior to the filing of a claim.
FRE 409 Payment of Medical and Similar Expenses
· Evidence of furnishing or offering or promising to pay medical, hospital, or similar expenses occasioned by an injury is not admissible to prove liability for the injury.
o Offering to pay for medical bills is not evidence of liability.
Bankcard, Inc. v. Universal, Inc., 203 F.3d 477 (7th Cir. 2000)
· Evidence regarding settlement negotiations is admissible, but only for purposes other than showing liability.
· Here, it would be unfair to allow Bankcard to invite a breach of contract, and then allow it to block evidence of the invitation. It was about applying the spirit of this rule rather than the rule exactly, because applying the rule exactly in this situation would discourage settlements.